LGBT rights in the United States

by the year when they were repealed or struck down.legend|#e00000|Laws struck down by the US Supreme Court in 2003.]

The LGBT rights movement in the United States seeks to achieve equality for all Americans, regardless of their sexual orientation or gender identity.

History

Background

In the United States, as early as the turn of the twentieth century several groups worked in hiding to avoid persecution to advance the rights of homosexuals, but little is known about them ( [http://www.infopt.demon.co.uk/suppress.htm Norton 2005] ).

A better documented group is Henry Gerber’s Society for Human Rights (formed in Chicago in 1924), which was quickly suppressed ( [http://hnn.us/articles/11316.html Bullough 2005] ). Serving as an enlisted man in occupied Germany after World War I, [http://www.gayhistory.com/rev2/factfiles/ff1924.htm|Henry Gerber] had learned of Magnus Hirschfeld’s pioneering work. Upon returning to the U.S. and settling in Chicago, Gerber organized the first documented public homosexual organization in America and published two issues of the first gay publication, entitled "Friendship and Freedom".

In 1948, "Sexual Behavior in the Human Male" was published by Alfred Kinsey, a work which was one of the first to look scientifically at the subject of sexuality. Kinsey's claim, that approximately 10% of the adult male population (and about half that number among females) were predominantly or exclusively homosexual for at least three years of their lives, was a dramatic departure from the prevailing beliefs of the time. Before its publication, homosexuality was not a topic of discussion, generally, but afterwards it began to appear even in mainstream publications such as "Time" magazine, "Life" magazine, and others.

Despite the entry of the subject into mainstream consciousness very little actual change in the laws or mores of society was seen until the mid-1960s, the time the sexual revolution began. This was a time of major social upheaval in many social areas, including views of sexuality.

Gay liberation

In the late 1960s, the more socialistic "liberation" philosophy that had started to create different factions within the civil rights, Black Power, anti-war, and feminist movements, also engulfed the homophile movement. A new generation of young gay and lesbian Americans saw their struggle within a broader movement to dismantle racism, sexism, western imperialism, and traditional mores regarding drugs and sexuality. This new perspective on Gay Liberation had a major turning point with the Stonewall riots in 1969.

On Friday, June 27, 1969 the police raided a gay bar, which was a common practice. This type of raid, which was often conducted during city elections, had a new development as some of the patrons in the bar began actively resisting the police arrests. Some of what followed is in dispute, but what is not in dispute is that for the first time a large group of LGBT Americans who had previously had little or no involvement with the organized gay rights movement rioted for three days against police harassment and brutality. These new activists were not polite or respectable but rather angry activists that confronted the police and distributed flyers attacking the Mafia control of the gay bars and the various anti-vice laws that allowed the police to harass gay men and gay drinking establishments. This second wave of the gay rights movement is often refereed to as the Gay Liberation movement to draw a distinction between the previous homophile movement.

New gay liberation organization were created such as the Gay Liberation Front (GLF) in New York City and the Gay Activists' Alliance (GAA). In keeping with the mass frustration of LGBT people, and the adoption of the socialistic philosophies that were being propagated in the late 1960s–1970s, these new organizations engaged in colorful and outrageous street theatre ( [http://www.washingtonpost.com/wp-srv/style/longterm/books/chap1/perfectenemies.htm Gallagher & Bull 1996] ). The GLF published "A Gay Manifesto" that was influenced by Paul Goodman working titled “The Politics of Being Queer” (1969).

The gay liberation movement spread to countries throughout the world and heavily influence many of the modern gay rights organizations. Today, GLBT people commemorate the Stonewall riots by annual marches that became known as gay pride parades and marches. However, the split among gay rights organization between the liberal-reformist homophile versus the socialistic gay liberationist philosophy still exists. Today, organizations such as the Human Rights Campaign follow a more mainstream, middle class-oriented and reformist tradition, while other organizations such as the National Gay and Lesbian Task Force (NGLTF) try to be grassroots-oriented and support local and state groups to create change from the ground up.

Gay migration

In the 1970s many gay people moved to San Francisco. Harvey Milk, a gay man, was elected to the city's Board of Supervisors, a legislative chamber often known as a city council in other municipalities. Milk was assassinated in 1978 along with the city's mayor, George Moscone. The White Night Riot on May 21, 1979 was a reaction to the manslaughter conviction and sentence given to the assassin, Dan White, which were thought to be too lenient.

The first national gay rights march in the United States took place on October 14, 1979 in Washington, D.C., involving perhaps as many as 100,000 people.

Historian William A. Percy considers that a third epoch of the gay rights movement began in the early 1980s, when AIDS received the highest priority and decimated its leaders, and lasted until 1998, when HAART made AIDS a chronic illness in developed countries ( [http://williamapercy.com/pub-Comments-PercyGlover.htm Percy & Glover 2005] ). It was during this era that direct action groups such as ACT UP were formed.

Civil rights laws

Owing to the United States' federal system and the diversity in attitudes toward LGBT rights, the status of LGBT civil rights in the U.S. is at present a patchwork. At the federal level, there is no recognition of same-sex unions and no laws forbidding employment discrimination against LGBT persons. Some states have enacted such laws, however.

Family law

In 1972, the Supreme Court of Minnesota in Baker v. Nelson ruled that it did not violate the federal Constitution for a state to deny a civil marriage license to a same-sex couple. The controversy over same-sex marriage was revived in 1993, when the Hawaii Supreme Court ruled that the state constitutional ban on sex discrimination meant that same-sex couples were entitled to a civil marriage license unless a the state could prove a "compelling state interest". [http://hawaiigaymarriage.com/trial.html] . A separate court in Hawaii found that the state had failed to show such a compelling interest [http://query.nytimes.com/gst/fullpage.html?res=9A06E2D91E3CF937A35751C1A960958260] , and same-sex marriage was legal in Hawaii for a day, before the judge stayed his ruling, and the state constitution was amended in 1998 to restrict marriage to different-sex couples.

While the events in Hawaii did not actually lead to effective marriage rights for same-sex couples, they helped prompt the United States Congress to enact the Defense of Marriage Act in 1996, which forbade the federal government from recognizing same-sex unions and permitted states to decide for themselves whether to recognize same-sex unions performed in other jurisdictions; until that point, there had been a controversy over whether states would be required to extend marriage rights to couples married in other states. The rights and responsibilities of marriage granted at the federal level, thus, do not apply to same-sex unions. Several states followed Congress and enacted similar laws denying recognition of marriage or other forms of union between two persons of the same sex.

In 1999, the Vermont State Supreme Court ruled in Baker v. Vermont that the state had to offer the legal benefits and responsibilities of civil marriage to same-sex couples, and thus the state legislature enacted a civil unions bill. The Massachusetts Supreme Court made a similar decision in case of Goodridge v. Department of Public Health (2004), except the court ruled that state had to either transform all civil marriages into civil unions or offer civil marriage to same-sex couples. Since 2004 marriage is open in Massachusetts.

In 2007 a similar decision in Iowa ruled that restriction of marriage to opposite-sex couples is discriminatory. The decision was stayed to allow the state government time to appeal, but not before one same-sex couple had been legally issued a marriage license.

These state court opinions prompted calls for a Federal Marriage Amendment, along with state amendments to ensure that courts would not change the civil definition of marriage. As of 2007, the legal options available to same-sex couples depends on what state they reside in.

State legislatures in Connecticut (2005), California (1999), Hawaii (1996), Maine (2004), New Jersey (2006), Washington (2007), New Hampshire (2007), Oregon (2007) Vermont (1999) and the District of Columbia (2001) have enacted either civil unions or more limited domestic partnership options for same-sex couples.

However, a backlash of these efforts was felt during the 2004 election cycle where fourteen states amended their constitution to ban legal recognition of same-sex marriages and often civil unions as well. Laws in Virginia, Michigan, and Ohio, the most far-reaching, forbids recognition of any benefits similar to those of marriage between people of the same sex.

A single gay person or a same-sex couple can adopt in some locations, although there are fewer locations where they may adopt children jointly with their partners.

Twenty states, the District of Columbia, and over 140 cities and counties have enacted such bans. The states banning sexual orientation discrimination in private sector employment are California, Colorado, Connecticut, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Washington, and Wisconsin (the first state to do so, in 1982). [ [http://www.hrc.org/worknet/nd/states_ban_dso.asp HRC | Page Not Found ] ] On November 22, 2007, Michigan governor Jennifer Granholm issued an order guarding the rights of transsexuals. She prohibited discrimination of state workers based on gender identity or expression. [http://hosted.ap.org/dynamic/stories/T/TRANSGENDER_MICHIGAN?SITE=NYMID&SECTION=HOME&TEMPLATE=DEFAULT] . Many of these laws also ban discrimination in other contexts, such as housing or public accommodation. A proposed bill to ban anti-gay employment discrimination nationwide, known as the Employment Non-Discrimination Act (ENDA), has been introduced in the U.S. Congress, but its prospects of passage were not believed to be good when there was a Republican-controlled Congress. However, the Democratic victory at the 2006 mid-term elections may present a new opportunity for the bill to pass. [ [http://www.sovo.com/2007/1-12/news/national/national.cfm Congress expected to vote on ENDA in ‘07 - Activists promise to heed lessons of gay rights battles in 1996 and 2003 ] ]

Thirteen states had reformed their state civil rights code (or experienced court decisions) to include sexual orientation and gender identity, while another seven had amended their civil rights code to only include sexual orientation [http://www.thetaskforce.org/downloads/misc/CoveredByNondiscrimLaws0507Color.pdf] . Aside from state law, about a hundred cities in thirty three states had enacted some type of civil rights legislation that includes sexual orientation.

Housing discrimination refers to discrimination against potential or current tenants by landlords. In the United States, there is no federal law against such discrimination on the basis of sexual orientation or gender identity, but at least thirteen states and many major cities have enacted laws prohibiting it. [ [http://realestate.findlaw.com/tenant/tenant-fair-housing/tenant-fair-housing-orientation.html Renter's Rights Against Sexual Orientation Discrimination - Findlaw for the Public ] ]

Hate crime laws

Hate crime laws (also known as "bias crimes laws") protect against crimes motivated by feelings of enmity or animus against a protected class. The current statutes permit federal prosecution of hate crimes committed on the basis of a person's race, color, religion, or nation origin when engaging in a federally protected activity (see 1969 hate crime law). Legislation is currently pending that would add gender, sexual orientation, gender-identity, and disability to this list, as well as remove the prerequisite that the victim be engaging in a federally protected activity (see Matthew Shepard Act). The DOJ/FBI, as well as campus security authorities, are required to collect and publish hate crime statistics (see Hate Crime Statistics Act and Campus Hate Crimes Right to Know Act).

45 states and the District of Columbia have statutes criminalizing various types of bias-motivated violence or intimidation (the exceptions are AR, GA, IN, SC, and WY). Each of these statutes covers bias on the basis of race, religion, and ethnicity; 32 of them cover sexual orientation; 32 cover disability; 28 cover gender; 13 cover age; 11 cover transgender/gender-identity; 5 cover political affiliation. [http://www.adl.org/99hatecrime/state_hate_crime_laws.pdf State Hate Crime Laws] , Anti-Defamation League, June 2006. Retrieved 2007-05-04.] 31 states and the District of Columbia have statutes creating a civil cause of action, in addition to the criminal penalty, for similar acts. 27 states and the District of Columbia have statutes requiring the state to collect hate crime statistics; 16 of these cover sexual orientation.

In "Wisconsin v. Mitchell" (1993) the Supreme Court unanimously held that state penalty-enhancement laws for hate crimes were constitutional and did not violate First Amendment rights to freedom of thought and expression.

Important Supreme Court decisions

In 1958, the Supreme Court of the United States reversed a lower court's ruling and thus, established a precedent that a homosexual publication was not intrinsically "obscene" and thus protected by the First Amendment.

On May 22nd, 1967, the Supreme Court of the United States upheld the Immigration and Nationality Act of 1952, which among other things banned homosexuals, as constitutional. This ban remained in effect until 1991 [http://www.forhealthfreedom.org/Publications/Privacy/Boutilier.pdf] .

In 1972, a Tacoma teacher of 12 years with a perfect record was terminated after a high school student outed him to the principal. On October 3, 1977, the Supreme Court refused to hear the case on appeal. While this is not an official judgement on the merit of the case, it did uphold a lower court's ruling that becoming a "known homosexual" automatically impaired his efficiency as a teacher which used various methods to support this claim: 1. Defined homosexuality based on the New Catholic Encyclopedia which deemed the act as implicitly immoral; 2. An "immoral" person could not be trusted to instruct students as his presence would be inherently disruptive. Justice Charles Horowitz based the Court's conclusion of Gaylord v. Tacoma School District No. 10 solely on the testimony of one student, three teachers and administration who objected to a known homosexual teaching at the school because it "would create problems" from the presence of such faculty. This landmark case is significant as it was the first homosexual discrimination case decision to be aired on national network news. In fact, it was simultaneously aired on all three national evening news networks totaling approximately 60 million viewers. [http://www.stateofthenewsmedia.org/2006/narrative_networktv_audience.asp?cat=3&media=5] [ [http://openweb.tvnews.vanderbilt.edu/1977-10/1977-10-03-NBC-11.html Supreme Court / Homosexuality and Women's Pensions Cases / Bakke / Protests NBC News broadcast from the Vanderbilt Television News Archive ] ] [ [http://openweb.tvnews.vanderbilt.edu/1977-10/1977-10-03-CBS-15.html Supreme Court / Homosexuality Case / Nixon Tapes / Other Cases To Come CBS News broadcast from the Vanderbilt Television News Archive ] ] [ [http://openweb.tvnews.vanderbilt.edu/1977-10/1977-10-03-ABC-3.html Supreme Court / Washington Homosexual Firing / Bakke / Other Cases ABC News broadcast from the Vanderbilt Television News Archive ] ] [http://www.qrd.org/qrd/www/orgs/glstn/teachers.legal.rights]

On June 30, 1986, the Supreme Court of the United States ruled in Bowers v. Hardwick, that homosexual citizens had no constitutional right to privacy.

On May 20, 1996, the Supreme Court of the United States ruled in Romer v. Evans against an amendment to the Colorado state constitution that would have prevented any city, town or county in the state from taking any legislative, executive, or judicial action to protect homosexual citizens from discrimination on the basis of their sexual orientation.

On March 4, 1998, the Supreme Court of the United States ruled in the case "Oncale v. Sundowner Offshore Services" that federal laws banning on-the-job sexual harassment also applied when both parties are the same sex. The lower courts, however, have reached differing conclusions about whether this ruling applies to harassment motivated by anti-gay animus.

On June 28, 2000, the Supreme Court of the United States ruled that the Boy Scouts of America had a First Amendment right to exclude people from its organization on the basis of sexual orientation, irrespective of any applicable civil rights laws.

In 2003, the United States Supreme Court ruled in Lawrence v. Texas that laws against sodomy or anal sex cannot be directed at homosexuals alone, and furthermore, that intimate consensual sexual conduct is part of the liberty protected by substantive due process under the Fourteenth Amendment. The majority opinion, written by Justice Anthony Kennedy, explicitly reverses Bowers v. Hardwick [http://www.law.cornell.edu/supct/pdf/02-102P.ZO] .

LGBT interest groups

In the 21st century, defending homosexuals against homophobia and gay bashing and other forms of discrimination is a major element of American gay rights, something gay rights groups see as part of a broader struggle for human rights. Among the voices for the LGBT community are Human Rights Campaign (HRC) and National Gay and Lesbian Task Force (NGLTF or The Task Force). The ideological split is seen between these two organizations. The Task Force is usually seen as more progressive and left of center, whereas HRC is seen as more centrist. Progressive gay rights organizations include the Gay & Lesbian Victory Fund, The National Gay and Lesbian Task Force, Parents, Families and Friends of Lesbians and Gays (PFLAG) and the Gay & Lesbian Alliance Against Defamation (GLAAD) and various local gay community centers. Gay rights organizations include the Log Cabin Republicans, the Independent Gay Forum and even other organizations have arisen such as "Gays and Lesbians for Individual Liberty" and the "Outright Libertarians". The United States Green Party has an LGBT "Lavender Greens" caucus. Freedom to Marry is the leading advocate for same-sex marriage. Denominations that have supported same-sex marriage include the Unitarian Universalist Association, the Episcopal Church, the United Church of Christ, and the Metropolitan Community Church.

Opposition

The main opponents of the advances of the gay rights movement in the U.S. have generally been conservatives. Religion is the most cited reason for opposing gay rights. Regionally, opposition to the gay rights movement has been strongest in the Southern and rural states.

As the movement for same-sex marriage has developed, many national and/or international organizations have opposed that movement. Those organizations include the American Family Association,the Christian Coalition, Family Research Council, Focus on the Family, the Moral Majority, NARTH, the national Republican Party, [cite web|url=http://www.gop.com/images/2004platform.pdf |title=Republican Party 2004 Platform] the Roman Catholic Church, the The Church of Jesus Christ of Latter-day Saints (Mormons), [cite weburl=http://newsroom.lds.org/ldsnewsroom/eng/public-issues/same-gender-attractionaccessdate=2008-04-08title=LDS Newsroom - Same-Gender Attractiondate=2008-04-08] the Southern Baptist Convention, [cite web|url=http://www.reclaimamerica.org/PAGES/NEWS/news.aspx?story=1264 |title=SBC Officially Opposes "Homosexual Marriage|publisher=The Southern Baptist Convention|date=2003-07-26|accessdate=2006-07-05] Alliance for Marriage, Alliance Defense Fund, Liberty Counsel, and the National Organization for Marriage.

U.S. political parties

Among the two major parties, The Democratic Party has endorsed some gay rights legislation in its national party platform since the 1980s. The Republican Party has close ties to the Christian right and thus tends to oppose gay rights legislation, as does its national party platform. However, there are some variations among individual politicians, i.e., a Democrat in a more rural district is less likely to support gay rights, while a Republican in a more urban district may be more likely to support gay rights. For example, former senatorBarry Goldwater, a conservative Republican, had expressed his views on gay rights which are more concurrent with a left-wing approach;cite news|url=http://www.washingtonpost.com/wp-srv/politics/daily/may98/goldwater072894.htm|title=Barry Goldwater's Left Turn|first=Lloyd|last=Grove|date=1994-07-28|accessdate=2008-03-13|work=Washington Post] he said gays should be allowed in the military, etc.cite news|url=http://findarticles.com/p/articles/mi_m1589/is_n763/ai_20908544|title=Goldwater's legacy - Barry Goldwater's support for gay rights|date=1998-07-07|accessdate=2008-03-13|work=The Advocate|publisher=findarticles.com|first=Chris|last=Bull] Similarly, Rudy Giuliani, also a noted Republican, does support civil unionscite web|url=http://www.columbia.edu/cu/gables/dpinfo_nyc/espa_pressrelease_1998-07-08.html|title=New York City Takes Historic Stepon Domestic Partnership|date=1998-07-08|accessdate=2008-03-13|work=Empire State Pride Agenda] cite news|url=http://www.boston.com/news/nation/articles/2007/08/13/giuliani_continues_his_conservative_shift/|title=Giuliani continues his conservative shift|date=2007-08-13|accessdate=2008-03-13|work=The Boston Globe|author=Mooney, Brian C.] and other forms of gay rights.

On November 15, 1989, Massachusetts Governor Dukakis signed the Gay Rights Bill into law. Massachusetts became the second state, after Wisconsin, to pass such a bill.

Today, active minor political parties have wide-ranging views on gay rights. The Libertarian Party has endorsed a libertarian perspectives on LGBT rights since it was created in 1972, and the Green Party also has endorsed gay rights since it was created in the 1980s. While many American socialist and communist political parties initially preferred to ignore the issue, most support gay rights causes. The Socialist Party USA was the first party to nominate an openly gay man, David McReynolds, as its Presidential candidate in 1980. The Constitution Party strongly opposes gay rights and is tied to Christian Reconstructionism.

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